Saxer v. State

• Decision Date: 29 August 2003
• Docket Number: No. 09-01-499-CR.,09-01-499-CR.
• Citation: 115 S.W.3d 765
• Parties: Norman SAXER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

115 S.W.3d 765

Norman SAXER, Appellant, v. The STATE of Texas, Appellee.

No. 09-01-499-CR.

Court of Appeals of Texas, Beaumont.

Submitted February 24, 2003.

Decided August 29, 2003.

John D. MacDonald II, Conroe, for appellant.

Michael A. McDougal, District Attorney, Jim Prewitt, Marcia Tillman, Gail Kikawa McConnell, Assistant District Attorneys, Conroe, for state.

Before STEVE McKEITHEN, C.J., DON BURGESS and GAULTNEY, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted Norman Saxer of murder and assessed his punishment at fifty years' confinement in the Texas Department of Criminal Justice—Institutional Division. Saxer raises seven issues for our consideration. His first two issues complain of the lack of legally and factually sufficient evidence to sustain his conviction. Issues three through five complain of trial court error in permitting extraneous offense/bad act evidence to be admitted before the jury. Issues six and seven refer to the trial court's refusal to permit Saxer to impeach a State's witness. We begin, as we must, with an analysis of Saxer's legal sufficiency complaint.

At the outset, we note that the State's case against Saxer was entirely circumstantial. In Dorsey v. State, 24 S.W.3d 921 (Tex.App.-Beaumont 2000, no pet.), a case also heavily reliant on circumstantial evidence to sustain the conviction, we framed the standard for reviewing a legal sufficiency complaint as follows:

In evaluating legal sufficiency, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

....

[A]ll evidence admitted at trial—including improperly admitted evidence—is considered in a legal sufficiency review. Dewberry v. State, 4 S.W.3d 735, 740-41 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).

....

... In our sufficiency review, we are governed by the fact that the jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony. Tex.Code Crim. Proc. Ann. Art. 38.04 (Vernon 1979). The jury may believe or disbelieve all or any part of a witness's testimony, even though the witness's testimony has been contradicted. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim. App.1986). Reconciliation of conflicts in the evidence is within the exclusive providence of the jury. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). Where, as here, identity is an issue in the case, the identity of the perpetrator may be proved by direct or circumstantial evidence. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986).

Dorsey, 24 S.W.3d at 924. Additionally, we recognize that the standard by which a reviewing court considers a legal sufficiency complaint is the same when faced with a record containing direct or circumstantial evidence. Id. We also note that in applying the Jackson v. Virginia standard for legal sufficiency, reviewing courts in Texas consider only the evidence that supports the verdict and ultimately disregard any evidence that does not support the verdict. See Clewis v. State, 922 S.W.2d 126, 132 n. 10 (Tex.Crim.App.1996). Based upon these appellate standards, we set out the pertinent facts contained in the record before us and disregard facts or inferences that do not support the verdict.

LEGAL SUFFICIENCY REVIEW

At approximately 5:00 p.m., on June 1, 2000, the body of the victim, Emily Thorson, was discovered by her boy friend, Paul Morales. Morales had just returned from work and had noticed that the door leading into the apartment he shared with Thorson was unlocked. Thorson's body was fully clothed down to the slip-on sandals on her feet. She was partially on and partially off the couch with her upper torso and head laying on the seat-cushions of the couch. Thorson had a towel on or around her head and the towel had blood on it. There also appeared to be blood on the back and arm of the couch on the left side. A subsequent autopsy determined Thorson had been shot twice in the head at close range. The cause of death was due to the gunshot wounds to the head with a "secondary diagnosis" of strangulation due to evidence of external neck compression. Also, based on the condition of the body when the autopsy took place, and on the time the autopsy was performed, it was estimated that Thorson was killed between the hours of 11:00 p.m. of May 31, and 11:00 a.m. of June 1.

Saxer lived in the same apartment complex as Morales and the victim. It appears from the record that Saxer had known the victim for quite some time and the victim had been a babysitter for Saxer and his wife approximately four years earlier. The record further indicates that besides socializing with Saxer and his wife, Morales and the victim also purchased marijuana from, and shared marijuana with, Saxer. Morales and the victim also owed Saxer money for marijuana.

Approximately one week before Ms. Thorson's murder, Mr. Morales, Ms. Thorson, and Mr. Morales's step-father helped Saxer's wife, Susan, move out of the apartment she shared with Saxer. Saxer was unaware that his wife intended to move out and only found out when he returned to the apartment from work. Upon finding his wife gone, Saxer went to the apartment of the manager, Lisa Garcia, and spoke to her concerning his wife's whereabouts. Garcia could see that appellant was a little upset, and although Garcia knew where Saxer's wife was, she told Saxer that she did not. Over objection, Garcia was permitted to testify that Saxer stated the following, "if he [Saxer] found out who helped her [Saxer's wife] move out, he was going to kill them."

The police investigation of the murder scene turned up no usable fingerprint evidence nor any other physical evidence such as hair, nail clippings, skin, or body-fluids that could be connected to Saxer. However, a spent bullet was located approximately ten feet from the couch where the victim's body was found. This bullet matched the .22 caliber handgun that was later identified by two witnesses, John Sayers and Lisa Garcia, as having been sold back to Saxer in the early-morning hours of June 1, 2000. Sayers had purchased the handgun from Saxer approximately two months before the murder took place. At approximately 12:45 p.m., on June 1, 2000, Sayers returned to Saxer's apartment to retrieve a bottle of whisky when he saw the handgun again. Sayers saw the handgun on Saxer's waterbed in Saxer's upstairs bedroom. Saxer told Sayers that he was going to a shooting range to shoot "some guns."

Another Saxer friend, Patrick Lee Sparks, testified to his encounters with Saxer on the day of the murder. The testimony from Sparks that was most significant indicated that at about 10:55 a.m. or 11:00 a.m., on June 1, 2000, Sparks received a call from Saxer asking Sparks not to come to Saxer's apartment as Saxer had a "lady friend" coming over. Previous testimony indicated that Sparks had been at Saxer's apartment from about 8:00 a.m. to about 10:30 a.m. on June 1. Over objection, Sparks was permitted to testify that early on the morning of June 1, Saxer called Sparks requesting to purchase some methamphetamine from Sparks. Sparks brought the methamphetamine to Saxer's apartment at about 8:00 a.m., and he and Saxer ingested the drug sometime thereafter. At any rate, Sparks later related that he received a follow-up call from Saxer at about 11:20 a.m., indicating that Saxer was "done with what he was doing with his lady friend" and indicated that Sparks could return to Saxer's apartment. Sparks then returned to Saxer's apartment. It was at this time that Sparks and Saxer discussed going shooting in Huntsville later in the day. Sparks then left Saxer's apartment to go visit another friend living at the same complex. Sparks visited this friend from approximately noon to about 12:30 p.m. or 12:45 p.m., at which time Sparks returned to Saxer's apartment.

At this point, Sparks testified that Saxer had some bags packed with several "guns" that the two men would use to shoot in Huntsville, and that Saxer was polishing the .22 caliber handgun. Sparks testified that Saxer indicated that the handgun had been brought over by a friend from work and that this friend "may have gotten in some trouble with it." Saxer brought the.22 caliber handgun with them to Huntsville, and after Sparks shot the handgun, Saxer told Sparks that he [Saxer] had to get rid of the handgun "because he didn't want it over there just in case the police came looking for it." Sparks was given the handgun and subsequently purchased it. On the return trip from Huntsville the men dropped the .22 caliber handgun off at Sparks's house. Sparks testified that he later learned that Ms. Thorson had been murdered by being shot in the head. At some point after this, Sparks received a call from Saxer. Sparks asked Saxer if he was aware that Ms. Thorson had been shot, and told Saxer that he [Sparks] was going to return the .22 caliber handgun to Saxer. Sparks described Saxer's demeanor as going from "pretty normal" to "hostile," with Saxer telling Sparks not to bring the handgun back to Saxer's apartment. Saxer told Sparks that he [Saxer] was going to pick up his kids and his wife and then hung up the phone.

Fearing the handgun to be possibly connected to Ms. Thorson's murder, Sparks drove to a location, Artesian Lakes, and threw the handgun in the lake. The handgun was ultimately retrieved from the lake by authorities during the investigation of Ms. Thorson's murder. Sparks also testified to two other incidents involving Saxer that occurred on June 1. First, while he and Saxer were driving along Interstate 45 on their way to Huntsville to shoot the guns, Saxer pulled a bag of clothes from behind the driver's seat and began throwing articles of clothing out of the...